LEGAL ISSUES

Peer-Reviewed

The Legal Document

& Evidence in
SAFETY-
RELATED
PROCEEDINGS
By Travis D. Livermore

ARMMY PICCA/ISTOCK/GETTY IMAGES PLUS

S
SAFETY ISSUES OFTEN LEAD to legal proceedings. For Once that threshold question is answered, the pro-
example, an injured employee may file a workers’ com- ponent of admitting a document must overcome other
pensation claim that is ultimately litigated before a work- obstacles to admission. For example, a document would
ers’ compensation commission and may result in a later not be admissible “if its probative value is substantially
appeal to a state court. An injured employee may sue an outweighed by a danger of . . . unfair prejudice, confus-
employer in state or federal court for gross negligence and ing the issues, misleading the jury, undue delay, wasting
may also sue the manufacturer of a product that contrib- time, or needlessly presenting cumulative evidence” (Fed.
uted to the injury. An employer may be cited by OSHA R. Evid. 403). In a gross negligence suit brought by an
and litigate the citation before the Occupational Safety injured employee against an employer following a fall, a
and Health Review Commission (OSHRC). In any of court or judge may choose not to admit the employee’s
these proceedings, each side would present evidence such written acknowledgment of fall protection training for
as training materials, safety policies and incident reports, each of the previous 10 years, instead limiting admission
which are prepared by safety professionals. to the 3 years leading up to the incident. Nonetheless,
It is not uncommon to hear safety professionals refer to the probative value must be substantially outweighed by
a document as a “legal document.” This term often comes another issue such as unnecessary cumulative evidence
up in the context of training acknowledgments or a safety (see Fed. R. Evid. 403). This burden is difficult to meet,
task assessment. However, the term “legal document” so in most instances, probative evidence is generally not
has no real significance. In fact, one might argue that all excluded under this rule.
documents are legal documents because any document In one contest before the OSHRC in which the em-
that meets the requirements for admissibility in a court ployer was challenging a citation for allegedly failing to
proceeding may have significant legal impact. properly slope or otherwise support trench walls, the
This article strives to briefly explore the extent to administrative law judge (ALJ) had excluded the employ-
which documents and other evidence pertaining to safe- er’s expert testimony and report on the basis of unfair
ty may be used in legal proceedings, for what purposes prejudice (Broshear Contractors, 1992). The ALJ had
and under what circumstances. Additionally, this article determined that first, the evidence was not relevant, and
seeks to clarify a somewhat complex subject in a way second, the re-excavation, upon which the expert’s report
that will assist safety professionals in thinking strate- was based, was performed without notice to OSHA and
gically about how documents they author or maintain would therefore be inadmissible because the danger of
may affect their companies from a legal standpoint. The unfair prejudice to OSHA would substantially outweigh
federal rules of evidence will primarily be used in this the probative value of the evidence. On review of the ALJ’s
article. States have their own evidentiary rules, but many decision, however, the commission disagreed, finding that
have adopted the federal rules in one form or another. the report and testimony were relevant and that the lack
The author will not necessarily identify whether the fed- of notice alone was not sufficient for exclusion on the ba-
eral or a state’s rules are being applied in legal proceed- sis of unfair prejudice.
ings discussed in this article.
Hearsay, the Business Records
Probative Evidence & Limits Exception, Double Hearsay & Admissions
The most significant question relating to the legal im-
Probative evidence is subject to yet other obstacles to
plications of a document is whether it is admissible in a
admission. Such evidence must not be hearsay or must
legal proceeding. To be admissible, a document must be
meet an exception to the hearsay rule (see Fed. R. Evid.
probative and must not violate other evidentiary rules (Fed.
801-807). Hearsay is an out-of-court statement that is later
R. Evid. 401; 402). A document is probative if “it has any
offered in court to prove the truth of what was said or
tendency to make a fact [of consequence] more or less prob-
written out of court (Fed. R. Evid. 801). See Table 1 (p. 24)
able” than it would be without the document (Fed. R. Evid.
for definitions of terminology and speakers of hearsay.
401). For example, when an employee attends fall protec-
There are more than 25 exceptions to the hearsay rule
tion training and signs a document acknowledging that the
under the Federal Rules of Evidence (see Fed. R. Evid.
individual attended and understood the training, such a
803-804, 807). Some of these exceptions only apply when
document would be probative of whether the employer met
the person who made the out-of-court statement is un-
its obligation to properly train employees under applicable
available to testify in court (Fed. R. Evid. 804). However,
OSHA standards in a citation contest before the OSHRC.
most exceptions apply without regard to whether the out-
of-court speaker is available to testify (Fed. R. Evid. 803).
KEY TAKEAWAYS Of note, many statements in written or other form may
•impact
A company’s safety-related documents may have great
beyond the organizational context, especially in post-­
be admissible to prove something other than the truth
of what was actually said. For example, in a suit by an
incident legal proceedings. injured worker against a third party whose forklift struck
•depends
The admissibility of a safety document in a court proceeding
on many factors such as relevance, whether the doc-
the worker, a statement by a witness that is captured in
the incident report of the worker’s company to the effect
ument includes statements by people other than the author, that the witness had noticed the forklift earlier in the day
and how damaging the document may be to a party in the case. might be admissible to impeach the witness’s testimony in
• Safety professionals have the capacity to, and should, think
strategically about how documents they produce may affect
court that the witness never noticed the forklift before it
struck the worker. In other words, the statement might be
their company in future legal proceedings. admissible to attack the witness’s credibility. If the state-

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 TABLE 1 In Rivera v. Palm Beach County (2021, p. 2), the plaintiff
TERMINOLOGY & sued the defendant for wrongful termination, alleging
discrimination on the basis of race and sex. The defen-
SPEAKERS OF HEARSAY dant employer asserted that it had a legitimate reason for
terminating the employment of the plaintiff bus driver as
he had “threatened to physically fight a passenger” (p. 12).
Statement Assertion: oral, written The plaintiff argued that other similarly situated individ-
or nonverbal if uals were not terminated under the same or similar cir-
intended as an cumstances (p. 33). Palm Beach County asserted that the
other employees’ circumstances were different, offering
assertion its report that one of the other bus drivers was not termi-
Declarant Person who makes the nated for defending himself when a passenger hit him in
statement (while not the face and later spat on him (pp. 33-47). The plaintiff
argued that this report was inadmissible hearsay, but the
testifying as a witness court found that such a report met the requirements of
in court) the business records exception, finding that the employee
Offered as May be offered in a submitted the report in accordance with the bus opera-
tor’s handbook requirement that such a report be submit-
evidence in document, or another ted to the safety and training department within 24 hours
court witness may testify to of such an incident (pp. 16-20).
hearing the statement In Lingefelt v. International Paper Co. (2010, at 121-122),
contractor employees who were injured while performing
To prove the To prove in court that work at an International Paper facility sued International
truth of the the statement made Paper and its safety manager for negligence and wanton-
matter out of court is true ness. Specifically, the employees claimed that the defen-
asserted dants “had failed to maintain a safe premises, had failed
to warn of a dangerous condition, . . . and had failed to
repair [the] dangerous condition . . .” (at 122). The con-
ment is admissible, the worker’s attorney would be able to tractor was in the process of disassembling equipment
obtain a limiting instruction for the jury to the effect that around a lime kiln when a duct came loose and fell on an
employee, causing severe injuries (at 121-122). Another
it may only consider the statement as to whether the wit-
employee claimed an injury from falling off a ladder while
ness is a truthful person and not specifically with regard
trying to rescue the first injured employee (at 121-122).
to whether the witness actually saw the forklift earlier in
The appellate court affirmed the trial court’s grant of
the day. On the other hand, if the statement meets an ex-
summary judgment in favor of the defendants, along with
ception to the hearsay rule, it would also be admissible to
the trial court’s exclusion of the report of the contractor’s
show that the witness actually saw the forklift.
safety manager (Lingefelt v. Int’l Paper Co., 2010, at 121).
If the witness is the worker themselves, the statement
The report stated that “[c]lose inspection by [International
would also be admissible as an admission and for full
Paper] . . . determined that . . . no activity by [the injured
consideration by the jury [see Fed. R. Evid. 801(d)(2)]. An
employees or contractor company] was the cause of the
admission is any statement made by a party to litigation
failure” (at 128).
or made by an authorized representative of the party (Fed. The court noted that, even if the report met the busi-
R. Evid. 801). Admissions are generally admissible under ness records exception, it would have to satisfy other
hearsay rules [see Fed. R. Evid. 801(d)(2)]. In the example rules relating to opinion by, for example, coming from
above, the worker would be a party to the litigation, so a recognized expert (Lingefelt v. Int’l Paper Co., 2010,
anything the worker said leading up to litigation would at 127-128). As the statements did not meet the opinion
generally be admissible as an admission. rule, they were inadmissible. The injured employees
Like in the previous example, safety professionals fre- attempted to argue that the opinions in the report were
quently prepare reports such as cause maps or root-cause based on statements made by International Paper’s safety
analyses following incidents. The reports themselves, if manager and should therefore be admissible as an admis-
probative, are typically admissible under the business re- sion by a party opponent (at 128). The court rejected this
cords exception to the hearsay rule (see Fed. R. Evid. 803). argument, noting that the report consisted of conclusions
This exception permits admission of hearsay in the form drawn by the contractor’s safety manager based on dis-
of reports and records, if made by a person with knowl- cussions with International Paper’s safety manager rather
edge and kept as a regular practice of the business (Fed. than consisting directly of statements by International
R. Evid. 803). While incident reports generally meet such Paper’s safety manager, and therefore did not meet the
requirements, statements made by an injured employee or exception (at 128-129).
witness that are included in the report require additional
scrutiny (see Fed. R. Evid. 805). If offered to prove the Other Hearsay Exceptions
truth of what was said, then they are hearsay and must Some other frequently applied and noteworthy excep-
independently meet another exception to the hearsay rule tions to the hearsay rule include those of present sense
or be redacted (see Fed. R. Evid. 805). impression, excited utterance, statements of then-existing

24 PSJ PROFESSIONAL SAFETY SEPTEMBER 2022 assp.org

FIGURE 1
SIMPLIFIED SUMMARY OF ADMISSIBILITY OF
DOCUMENTS & TESTIMONY ABOUT OUT-OF-COURT STATEMENTS

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 mental, emotional or physical condition, and statements Nonhearsay & Imputation
made for medical diagnosis or treatment. A present sense In addition to explicit exceptions to the hearsay rule,
impression is a “statement describing or explaining an some statements are defined as nonhearsay even though
event or condition, made while or immediately after the they might otherwise meet the definition of hearsay (see
[the person who made the statement] perceived it” [Fed. Fed. R. Evid. 801). One such statement is the admission.
R. Evid. 803(1)]. An excited utterance is a “statement re- In addition to the forklift incident example noted, anoth-
lating to a startling event or condition, made while the er example of this highly utilized nonhearsay statement
[person who made the statement] was under the stress of would be an internal company email from a company
excitement that it caused” [Fed. R. Evid. 803(2)]. supervisor explaining to a corporate safety manager that
In Tercero v. Oceaneering International Inc. (2018, pp. lockout/tagout was not properly implemented following a
1-2), the plaintiff sought recovery after being injured workplace injury.
during a fall from a ladder while working. The court con- In Regina Construction Company (2017), the employer
sidered whether the written statement of the employee’s was cited after a compliance officer observed an employee
supervisor, describing the “thump” he heard when the doing concrete work while being exposed to a poten-
worker landed, and the statement the plaintiff made relat- tial fall of 24 feet. Noting that OSHA had the burden of
ing to back pain were admissible (pp. 3-7). One argument proving that the employer had knowledge of the violative
asserted was that the statements qualified as present sense condition, the commission recognized that “the actual or
impressions. The court found, however, that the state- constructive knowledge of an employer’s foreman can be
ments were inadmissible because the supervisor did not imputed to the employer” [Regina Construction Company
observe the event, and the worker’s statement was made (citations omitted)]. OSHA had established knowledge
the day after the incident, that is, that it was not made before the ALJ by introducing statements of an employee
close enough to the time of the event. indicating that the foreman was aware of the fall hazard.
In Reyes v. Campo Brothers (2016), a worker sought The compliance officer testified that the employee told
recovery from the managing company of a construction him his foreman had been to the work area with him, had
site after sustaining injuries from a fall while employed given him the work assignment and had recently departed
by a subcontractor. One issue was the admissibility of the area. The commission affirmed the ALJ’s decision that
a hospital record indicating that the worker had stated the employee’s statement was admissible as an admission
he fell from a ladder. The worker wanted to exclude the given that it related to the scope of his employment. The
record because of his contention that the fall was from a employer argued that the statements made by the foreman
roof. The court found the statement admissible as it relat- to the employee, to which the compliance officer testified,
ed to the diagnosis or treatment of the plaintiff and also constituted double hearsay and would therefore be inad-
as an admission. missible. The commission affirmed the ALJ’s rejection of
Five of the exceptions to the hearsay rule only apply this argument, noting that the foreman’s statement would
when the person who made the out-of-court speaker is also be an admission imputable to the employer and
unavailable [see Fed. R. Evid. 804; (A declarant is un- would therefore be admissible.
available if her testimony would be privileged, she refus- With so many exceptions to and workarounds for the
es to testify despite a court order to do so, she testifies hearsay rule, one might wonder if the rule is swallowed by
that she is unable to remember, she cannot be present the exceptions, rendering it largely impotent. In practice,
or testify because she is dead or suffering some other however, such is not the case, and evidence is frequently
physical or mental infirmity, or she is not present at excluded or redacted under the rule. Figure 1 (p. 25) pro-
trial and cannot be served with a subpoena)]. One such vides a simplified summary of admissibility of documents
exception is often referred to as the dying declaration and testimony about out-of-court statements.
(Fed. R. Evid. 804), as the exception involves a statement
a person makes about the cause or circumstances of the Documentary Evidence Generally
person’s death while believing death is imminent. The Another rule relating to documentary evidence is the
statement is admissible despite its hearsay character, but requirement that a document must be the original (see
only in homicide and civil cases. Fed. R. Evid. 1002). This rule is far more lenient, however,
In Park Construction Company (1975), the employer than it appears as electronic copies, printouts and dupli-
challenged its citation before the OSHRC following an cates are generally admissible (Fed. R. Evid. 1001-1003).
incident in which an employee was killed while oiling Under this rule, a safety training sign-in sheet that has
the track of a crawler crane when the operator moved the been scanned and is stored electronically could be printed
crane, unaware of the other employee’s presence. Before out and would generally be admissible in legal proceed-
dying, the employee told the operator that he “got caught ings. Similarly, a photograph of the work area where an
between the counterweight and the track,” and that he injury occurred that is stored on a computer and later
“hurt real bad” [Park Construction Co. (internal quotation printed would also generally be admissible.
marks omitted)]. The ALJ admitted these statements, Physical and documentary evidence must be authen-
finding that they met the requirements of the dying dec- ticated, or otherwise fall within a self-authenticating
laration exception. (Note: the statement that the employee category (see Fed. R. Evid. 901). Evidence is authenticated
“got caught between the counterweight and the track” when the proponent of admission produces “evidence
would also likely qualify as a present sense impression, sufficient to support a finding that the item is what the
while the “hurt real bad” comment would constitute a proponent claims it is” (Fed. R. Evid. 901). In the case of a
statement of then existing physical condition.) safety manager’s report, the report could be authenticated

26 PSJ PROFESSIONAL SAFETY SEPTEMBER 2022 assp.org

by the safety manager testifying in court
that it is a safety report that the safety
Safety professionals IL ACTION CASE NO. 17-9568
SECTION: ‘G’ (2) (E.D.La. 2019),
manager prepared. To meet the business often author, quoting Walker v. Union Oil Mill
records exception to the hearsay rule, the Inc., 1979].
safety manager (or possibly someone else maintain or control In Mayet (2019), hearsay was not
within the company) would need to tes- at issue with respect to the signa-
tify regarding when the report was made,
documents that are ture on the JSA. Nonetheless, in
that the report was kept in the course of a ultimately used in legal some cases, signatures may be con-
regularly conducted activity of the busi- strued as hearsay. As the District
ness, such as following investigation of a proceedings to the Court for the District of Columbia
safety-related incident, and that making declared, “signatures are written
such a report was a regular practice. benefit or detriment of assertions and nonverbal conduct
their employers. intended as assertions, which
Hazard Assessments, makes them statements” under the
Training Records & Signatures rules of evidence (WYE Oak Tech.
In Mayet v. Energy XXI Gigs Services (2019), a worker Inc. v. Republic of Iraq, 2019, p. 21). However, as the court
sought recovery for injuries incurred while working on recognized, signatures are not always hearsay if they con-
the defendants’ mineral exploration and production stitute admissions or if offered for something other than
platform. The worker was using a crane to transfer boxes to prove the truth of the matter asserted [WYE Oak Tech.
from a vessel. The worker claimed that he suffered a her- Inc. v. Republic of Iraq, 2019; see also Silva v. State, 1982,
nia while moving a 40-lb object onto a rack. He argued citing Wilson v. State, 1980 (“Appellant’s second ground of
that “the location and configuration of the rack and error asserts that the bank signature card containing Mrs.
configuration of platform equipment, specifically the Silva’s signature was also inadmissible hearsay. Again, be-
location of a speaker in the area where the cargo box was cause the purpose of its introduction was simply to make
to be placed, ‘constituted an unsafe and unreasonably possible a handwriting comparison, this card was not
dangerous condition.’” The applicable law would pre- being offered to prove any statement contained therein
clude recovery if the condition leading to the injury was and was not hearsay.”)]. Additionally, signatures may con-
“open and obvious” [Mayet v. Energy XXI Gigs Servs., stitute verbal acts such that “the legal effects of the state-
2019, at 13 (“Under Louisiana law, when a condition is ments flow just by virtue of the fact that they were made,”
deemed ‘open and obvious’ it does not, as a matter of rather than based on some assertion associated with the
law, constitute an unreasonably dangerous condition”), signature (WYE Oak Tech. Inc. v. Republic of Iraq, 2019).
citing George v. Nabors Offshore Corp.; Eisenhardt v. This scenario is similar to statements made in the context
Snook]. Among the defendants’ arguments against lia- of forming a contract, such as an offer to purchase, which
bility was the assertion that the condition of which the constitutes a verbal act and is therefore nonhearsay (see
worker complained was open and obvious to the worker WYE Oak Tech. Inc. v. Republic of Iraq, 2019, at 21-22).
because of his experience and the fact that he signed Whether the signature of a trained employee consti-
the job safety analysis (JSA), acknowledging the risk (at tutes hearsay may depend on the surrounding context
4-5). The worker’s arguments referenced the conclusions and statements of the document. For example, a simple
of the incident report and its stated root causes, which training sign-in sheet with the title of a class calling
included the positioning of the speaker interfering with for the signature, contact information and company
the use of lifting slings in conjunction with the sling name may not constitute hearsay; however, a training
rack’s position (at 7-8). acknowledgment signed by an employee stating that the
The defendants were seeking summary judgment, employee understood or accepts the material would be
which dispenses with the need for a trial and dismisses hearsay if offered to prove that the employee actually
the action (Mayet v. Energy XXI Gigs Servs., 2019, at 1-2). understood and accepted the material [see Silva v. State,
Summary judgment is only appropriate where there are 1982, citing Wilson v. State, 1980 (“Appellant’s second
no genuine issues of material fact and the movant is enti- ground of error asserts that the bank signature card
tled to judgment as a matter of law [Mayet v. Energy XXI containing Mrs. Silva’s signature was also inadmissible
Gigs Servs., 2019, at 10, citing Fed. R. Civ. P. 56(a); Celotex hearsay. Again, because the purpose of its introduction
Corp. v. Catrett, 1986; Little v. Liquid Air Corp., 1994]. In was simply to make possible a handwriting comparison,
other words, it is only appropriate where no facts are in this card was not being offered to prove any statement
dispute and the law as applied to those undisputed facts contained therein and was not hearsay”)]. If the employ-
entitles the movant to judgment (see Mayet v. Energy XXI ee is a party to the litigation, then the signature would
Gigs Servs., 2019). The court denied the defendants’ mo- be admissible as an admission.
tion finding that a jury could still find that the condition In Clear Channel Outdoor Inc., v. International Union
was not open and obvious despite the plaintiff’s experi- of Painters and Allied Trades, Local 770 (2009), the Sev-
ence and the JSA, in consideration of the safety report’s enth Circuit Court of Appeals evaluated the argument
conclusions, among other factors (Mayet v. Energy XXI that the district court erred when it upheld an arbitrator’s
Gigs Servs., 2019, at 15-20). However, the court indicated decision that Clear Channel’s termination of an employ-
that it would be proper at trial, to consider the plaintiff’s ee for violating its fall protection rules was without just
experience and “familiarity with the premises and its cause, in violation of the terms of the collective bargain-
dangers” [Mayet v. Energy XXI Gigs Servs., 2019, “CIV- ing agreement between Clear Channel and the union.

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 The employee had been terminated after the company (OSHRC, 2020). Cases involving willful violations, repeat
president observed him not being tied off while working violations or fatalities are not appropriate for simplified
on a billboard (Clear Channel v. International Union, proceedings (OSHRC, 2020).
2009, at 673). The proffered evidence before the arbitrator While otherwise inadmissible evidence may be admit-
included a training acknowledgment signed by the em- ted in simplified proceedings, it may not be viewed with
ployee to the effect that he had been trained in fall pro- the same level of reliability and weight as other evidence.
tection equipment and that he understood that “the use In HCI Industrial & Marine Coatings Inc. (2019), the em-
of the body harness and other personal fall arrest equip- ployer was cited after one of its employees who was not
ment is mandatory.” A separate signed acknowledgment wearing fall protection fell. The citation alleged a viola-
provided that the employee understood “that improper tion of 29 CFR 1915.152(a), which requires, in part, that
use or not using prescribed equipment in a safety-­ the employer provide and ensure use of fall protection
sensitive environment will be grounds for immediate if fall hazards exist. For the citation to stand, the gov-
termination of employment” (Clear Channel v. Interna- ernment was required to prove that the employer “knew
tional Union, 2009). No arguments were before the court or, with the exercise of reasonable diligence, could have
regarding the admissibility of the acknowledgments. One known of the violation” [HCI Industrial & Marine Coat-
possible reason for the lack of arguments is that in arbi- ings Inc., 2019, citing Dun-Par Engineered Form Co., 12
tration, where this case originated, the rules of evidence BNA OSHC 1962, 1965 (No. 82-928, 1986) (internal quo-
generally do not apply (Turner, 2010). Additionally, even tation marks omitted)]. An employer’s knowledge may be
if the case originated in a forum where the rules of evi- proved by showing the actual or constructive knowledge
dence would apply, given that the employee was a party of its supervisors. In other words, “if a supervisor is, or
in the case, the signed acknowledgments would qualify as should be, aware of the noncomplying conduct of a sub-
admissions and be admissible. ordinate, it is reasonable to charge the employer with that
Table 2 describes the general admissibility of documents knowledge” (HCI Industrial & Marine Coatings Inc., 2019,
such as safety incident reports, notes and photographs. citing Mountain States Tel. & Tel. Co. v. OSHRC, 1980).
The ALJ noted that the government’s evidence of
Simplified Proceedings & Hearsay the employer’s knowledge consisted in large part of the
As noted, the rules of evidence do not apply in some compliance officer’s testimony of what he was told by
proceedings such as arbitration. The rationale behind unidentified employees and managers, along with an
not applying the rules in certain types of proceedings is unauthenticated photograph of two workers who were
that they may “have an adverse impact on the effective not using fall protection but that did not identify the
and speedy resolution” in cases where a single individual time and location of the activity (HCI Industrial & Ma-
or commission with specialized knowledge in the field rine Coatings Inc., 2019). The ALJ further noted that the
presides over the case (Turner, 2010). While the rules gen- compliance officer had selectively relied on statements
erally apply in OSHRC proceedings, they do not apply in by employees who indicated that fall protection require-
simplified proceedings. Cases may be appropriate for sim- ments were not enforced while ignoring employee and
plified proceedings if they have “relatively simple issues of supervisor statements to the contrary. The ALJ wrote,
law or fact,” relatively small, proposed penalties, the hear- “Although hearsay, and in this case double hearsay, may
ing is expected to be short, or a small employer is involved be admissible in Simplified Proceedings, it is not auto-
TABLE 2
GENERAL ADMISSIBILITY OF SAFETY
INCIDENT REPORTS, NOTES & PHOTOGRAPHS
Documents or Possible limitations
photographs Potential relevance Admissibility, generally on admissibility
Workplace safety • in a lawsuit to show the cause of an injury • admissible under business • may constitute work
incident reports • in OSHRC proceedings to show records exception to hearsay product if prepared in
noncompliance with OSHA standard rule anticipation of litigation
• in some situations, corrective actions • hearsay statements within
from report may be admitted to show report must be redacted or
feasibility of these actions before the meet an exception to the
incident hearsay rule
Safety manager’s • in a lawsuit or OSHRC proceeding to • if obtained during discovery, • not admissible to prove the
notes regarding an show employer’s knowledge of unsafe may be admitted as admission truth of the notes unless
incident or other condition of the employer used as an admission or
matter • if not admissible, safety meets exception to hearsay
manager may use notes to rule
refresh memory
Photographs of • in a lawsuit or workers’ compensation • Admissible if authenticated
workplace incident proceeding to show cause of incident (someone with knowledge of
scene • in OSHRC proceeding to show the incident or area testifies
knowledge of violative condition about what the photo shows)

28 PSJ PROFESSIONAL SAFETY SEPTEMBER 2022 assp.org

matically persuasive or reliable.” The court found in the OSHA personnel, and prepare for cross-examination of
in-court, live testimony of the employer’s representa- witnesses,” things the OSHRC noted “could be cited in
tives that the employer regularly discussed the need for almost any OSHA case.”
fall protection in safety meetings and posted signs, as At issue in Bally’s Park Place Hotel & Casino (1991)
persuasive, and concluded that the government had not was whether a report containing iodine emission testing
demonstrated the knowledge element necessary to sus- results for a washing machine constituted work product
tain the citation. such that the employer was protected from providing the
report to OSHA. OSHA had directed Bally’s to investigate
Attorney-Client Privilege, Work Product iodine emissions from the washing machine located at a
“Confidential disclosures by a client to an attorney bar in its casino following an employee complaint. Fol-
made in order to obtain legal assistance are privileged” lowing OSHA’s directive, Bally’s general counsel ordered
[Fisher v. United States v. Kasmir, 1976 (citation omitted)]. that the testing occur and that a confidential report con-
Similarly, the work product doctrine “protects from dis- taining results be sent to him.
closure certain materials prepared by attorneys or their Bally’s refused to produce the report even after OSHA
agents acting for clients in anticipation of litigation” (St. subpoenaed it. OSHA then issued willful citations to
Lawrence Food Corp., 2006, citing Hickman v. Taylor, Bally’s under sections 1910.20(e)(1)(i)(3) and 1910.20(e)(3)
1947). The doctrine: (i)(4) for failing to provide the results to a union represen-
applies when the materials in question are tative and to OSHA as required by those standards. The
shown to be 1. documents or other tangible ALJ affirmed the citations, and Bally’s appealed to the full
things, including an attorney’s mental impres- commission. The OSHRC found that the work product
sions, conclusions, opinions, or legal theories, doctrine, which is codified in the Federal Rules of Civil
2. prepared in anticipation of litigation or trial, Procedure, was controlling, despite the requirements of
and 3. gathered by or for a party or by or for the cited OSHA standards, and further found that OSHA
that party’s representative. [(St. Lawrence Food had not met its burden of showing that it could not obtain
Corp., 2006, citing Wright & Miller, 1987 § 2024; substantially equivalent test results without undue hard-
Continental Oil Co, 1981 (internal quotation ship, despite the agency’s complaint of a backlog of sched-
marks omitted)] uled inspections (Bally’s Park Place Hotel & Casino, 1991).
An attorney’s mental impressions, conclusions, opin-
ions, or legal theories enjoy nearly absolute protection Subsequent Remedial Measures
under the doctrine (St. Lawrence Food Corp., 2006, cit- Evidence of measures taken following an incident or
ing In re Murphy, 1977; In re Doe, 1981). Ordinary work injury that are designed to prevent recurrence and that
product (i.e., work product that does not contain an attor- “would have made an earlier injury or harm less likely to
ney’s mental impressions, conclusions, opinions or legal occur,” is “not admissible” to show “negligence,” “culpable
theories), “is generally discoverable upon a showing of conduct,” “a defect in a product or its design,” or “a need
substantial need and an inability to secure the substantial for a warning or instruction” (Fed. R. Evid. 407). None-
equivalent of the materials by alternate means without theless, evidence of such subsequent remedial measures
undue hardship” [In re Green Grand Jury Proceedings, is admissible for other purposes, such as “impeachment
2007, quoting In re Murphy, 1977 (internal quotation or—if disputed—proving ownership, control, or the feasi-
marks omitted)]. bility of precautionary measures” (Fed. R. Evid. 407).
In St. Lawrence Food Corporation (2006), the OSHRC In Coastal Drilling East LLC (2018), the employer con-
heard OSHA’s appeal from an ALJ’s order that OSHA tested a citation under the General Duty Clause. To suc-
turn over certain documents to the employer. The issue ceed on such a citation, OSHA must show that:
arose during a pretrial deposition of two OSHA com- a condition or activity in the workplace present-
pliance officers by the employer’s attorney. The govern- ed a hazard, that the employer or its industry
ment’s attorney instructed the compliance officers not to recognized this hazard, that the hazard was
respond to certain questions, but rather to assert privi- likely to cause death or serious physical harm,
lege. The government’s attorney argued before the ALJ and that a feasible and effective means existed
that certain memoranda and emails between government to eliminate or materially reduce the hazard.
attorneys and compliance officers relating to the lockout/ (Coastal Drilling East LLC, 2018)
tagout standard and alternative citation theories based on With respect to the last element, the existence of an
the facts of the case were not discoverable by the employer alternate means that is feasible and effective, the ALJ not-
because they were protected by attorney-client privilege, ed that, while OSHA had proposed compliance with an
the work product doctrine or both. The OSHRC reversed American Petroleum Institute standard as an alternative
the ALJ’s decision, noting that “compliance officers are means, evidence was also adduced by the employer that it
‘clients’ for purposes of determining whether their com- had developed its own alternative means (Coastal Drill-
munications with the Solicitor’s attorney are protected by ing East LLC, 2018). The ALJ noted that such evidence of
attorney-client privilege” (St. Lawrence Food Corp., 2006, subsequent remedial measures is typically inadmissible
citing Upjohn v. United States, 1981) and that the employ- but that it had been offered in this case without objection.
er had not met its burden of overcoming work product In affirming the citation, the ALJ found that the feasible
protection by arguing that it needed the documents “to and effective means element would be satisfied by either
prepare for the hearing, understand the actions of various OSHA’s proposed method or the employer’s method.

assp.org SEPTEMBER 2022 PROFESSIONAL SAFETY PSJ 29

 Recollection Refreshed Fed. R. Evid. 805. (eff. Dec. 1, 2011).
Hearsay Within Hearsay. Travis D.
Some documents may be useful even if not ultimately
admitted into evidence. A witness in a legal proceeding Fed. R. Evid. 806 (eff. Dec. 1, 2011). At- Livermore, J.D.,
tacking and Supporting the Declarant. CSP, is an attorney
may refresh their memory by reviewing a writing such Fed. R. Evid. 807 (eff. Dec. 1, 2019). with Touchstone,
as their handwritten notes (Fed. R. Evid. 612). When a Residual Exception. Bernays, Johnston,
witness does refresh their memory by reviewing a writ- Fed. R. Evid. 901. (eff. Dec. 1, 2011). Beall, Smith & Stollen-
ing, the other party is entitled to inspect the writing and Authenticating or Identifying Evidence. werck LLP in Dallas,
cross-examine the witness about it (Fed. R. Evid. 612). Fed. R. Evid. 1001. (eff. Dec. 1, 2011). TX, and has worked in
In Witco Chemical Company (1979), the employer faced Definitions That Apply to This Article. safety management
citations relating to exposing employees to chemicals in Fed. R. Evid. 1002. (eff. Dec. 1, 2011). for more than 8 years
Requirement of the Original. in both construction
excess of OSHA exposure limits. The employer objected and general industry.
Fed. R. Evid. 1003. (eff. Dec. 1, 2011).
to admission of a report of a chemist testifying for OSHA Admissibility of Duplicates. He previously worked
that stated the exact exposure levels revealed during test- Fisher v. United States v. Kasmir, 425 as an attorney with
ing on the basis that it had not been turned over to the U.S. 391, 48 L.Ed.2d 39, 96 S. Ct. 1569 the Illinois Appellate
employer prior to the hearing. The ALJ rejected this argu- (1976). Court. Livermore holds
ment based on its determination that not having the re- George v. Nabors Offshore Corp., 464 a J.D. from Southern
port did not prejudice the employer and that the employer F. App’x 298, 301 (5th Cir. 2012). Illinois University and
did not accept the ALJ’s offer of additional time when Hickman v. Taylor, 329 U.S. 495, 508 is a member of the
n.11 (1947). Illinois Bar Association
the report was disclosed. The court further buttressed its
In re Doe, 662 F.2d 1073 (4th Cir. 1981). and the State Bar of
conclusion by indicating that the document could have Texas. His articles
In re Green Grand Jury, 492 F.3d 976
been used by the chemist in any event to refresh her rec- (8th Cir. 2007). have been published
ollection and could ultimately have been admitted as past In re Murphy, 560 F.2d 326 (8th Cir. in the Illinois Bar
recollection recorded in the event the witness’s memory 1977). Journal and Journal of
was not refreshed (Note that past recollection recorded is Lingefelt v. International Paper Co., 57 Labor & Employment
an exception to the hearsay rule). So. 3d 118 (Ala. Civ. App. 2010). Law. Livermore is a
Little v. Liquid Air Corp., 37 F.3d 1069 professional member
(5th Cir. 1994). of ASSP’s Southwest
Conclusion
Safety professionals often author, maintain or control Mayet v. Energy XXI Gigs Servs., LLC. Chapter and a member
(E.D. La., 2019, Feb. 11). of the Society’s Util-
documents that are ultimately used in legal proceedings Mountain States Telephone & Tele- ities Practice Specialty.
to the benefit or detriment of their employers. Having graph Co. v. Occupational Safety &
a basic knowledge of how and to the extent these docu- Health Review Commission, 623 F.2d 155 (10th Cir. 1980).
ments may be admitted in future legal proceedings will Occupational Safety and Health Review Commission (OSHRC).
allow OSH professionals to better protect their companies (2020). Guide to simplified proceedings. https://bit.ly/3QDV81q
by engaging in proper documentation practices and ap- Park Construction Company, OSHRC Docket No. 2044. (1975,
propriately using attorney-client privilege and the work April 24). www.oshrc.gov/assets/1/18/Docket_No._2044.htm
product doctrine in the post-incident context. PSJ Reyes v. Campo Bros., 2016 N.Y. Slip Op. 50985 (N.Y. Sup. Ct. 2016).
Rivera v. Palm Beach County, 19-CV-81111 (S.D.Fla., 2021).
Secretary of Labor v. Bally’s Park Place Hotel & Casino,
References OSHRC Docket Nos. 87-1849 & 88-0337. (1991, Nov. 7).
Broshear Contractors Inc., OSHRC Docket No. 91-2125, May Secretary of Labor v. Coastal Drilling East, LLC., OSHRC
14, 1992, Order granting petition for interlocutory review and Docket No. 17-1179. (2018, Dec. 13).
remand. https://bit.ly/3BYXfsw Secretary of Labor v. HCI Industrial and Marine Coatings, Inc.,
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23. (1986). OSHRC Docket No. 17-1424. (2019, Feb. 14).
Clear Channel Outdoor Inc. v. International Unions of Painters Secretary of Labor v. Regina Construction Company, OSHRC
and Allied Trades Local 770, 558 F.3d 670 (7th Cir. 2009). Docket No. 87-1309. (2017, May 18). www.oshrc.gov/assets/1/18/
Continental Oil Co., 9 BNA OSHC 1737, 1741, 1981 CCH 87-1309.html
OSHD ¶ 25,371. No. 79-570. (1981). Secretary of Labor v. St. Lawrence Food Corp. d/b/a Primo
Eisenhardt v. Snook, 08-1287 (La. 3/17/09), 8 So. 3d 541 (La. Foods, OSHRC Docket Nos. 04-1734 and 04-1735. (2005, Nov. 2).
2009). https://casetext.com/case/eisenhardt-v-snook Secretary of Labor v. Witco Chemical Corp., OSHRC Docket
Fed. R. Civ. P. 56. (n.d.). Summary Judgment. No. 78-4674. (1979, Nov. 20).
Fed. R. Evid. 401 (eff. Dec. 1, 2011), Test for Relevant Evidence. Silva v. State, 635 S.W.2d 775 (Tex. Ct. App. 1982).
Fed. R. Evid. 402. (eff. Dec. 1, 2011). General Admissibility of Tercero v. Oceaneering Int’l, Inc. (E.D. La., 2018, May 28).
Relevant Evidence. Turner, W.C. (2010). A brief overview of the use of evidence in
Fed. R. Evid. 403 (eff. Dec. 1, 2011), Excluding Relevant Evi- arbitration. Nevada Lawyer. https://bit.ly/3dreg4p
dence for Prejudice, Confusion, Waste of Time, or Other Reasons. Upjohn Co. v. United States, 449 U.S. 383 (1981).
Fed. R. Evid. 407. (eff. Dec. 1, 2011). Subsequent Remedial Measures. Walker v. Union Oil Mill, Inc., 369 So. 2d 1043 (La., 1979).
Fed. R. Evid. 612. (eff. Dec. 1, 2011). Writing Used to Refresh a Wilson v. State, 605 S.W.2d 284, 287 (Tex. Crim. App. 1980).
Witness. Wright, C.A. & Miller, A.R. (1986). Federal practice and proce-
Fed. R. Evid. 801. (eff. Dec. 1, 2014). Definitions That Apply to dures (2nd edition).
This Article; Exclusions from Hearsay. WYE Oak Tech., Inc. v. Republic of Iraq, Civil No. 1:10-cv-
Fed. R. Evid. 802 (eff. Dec. 1, 2011). The Rule Against Hearsay. 01182-RCL (D.D.C., 2019, Aug. 17).
Fed. R. Evid. 803 (eff. Dec. 1, 2017). Exceptions to the Rule
Against Hearsay. Cite this article
Fed. R. Evid. 804. (eff. Dec. 1, 2011). Hearsay Exceptions; Livermore, T.D. (2022, Sept.) The legal document and evidence
Declarant Unavailable. in safety-related proceedings. Professional Safety, 67(9), 22-30.

30 PSJ PROFESSIONAL SAFETY SEPTEMBER 2022 assp.org